By Perry Zirkel
Principal, May/June 2013

Recent litigation reflects some of the intended and unintended consequences of the latest stages of high-stakes testing since the passage of the No Child Left Behind Act of 2001 (NCLB). This legislation is of direct significance to elementary school principals.

The Case
Prior to their late April 2009 administration of the Texas Assessment of Knowledge and Skills (TAKS), Byron Bolliger and Cristin Chaffin, the principal and assistant principal of a charter school in Dallas, attended workshops concerning the required standardized procedures. Both signed oaths of test security and confidentiality as test administrators.

On April 28, Bolliger and Chaffin issued the test booklets to their school’s teachers per the required request and receipt documentation. During the distribution, Bolliger was called away, and another testing coordinator completed the required distribution and documentation. Later that day, a district administrator, who is African American, met with Bolliger and Chaffin, posing questions regarding the security of the testing materials, such as why they had used a different documentation form than the one required in the state manual.

Within a day, the district administrator ordered Bolliger and Chaffin, who are Caucasian, to prepare individual written statements accounting for the alleged test administration irregularities. They complied. Nearly simultaneously, the testing coordinator who had filled in for Bolliger fi led an incident report that they had distributed the material for the entire week at one time and did not verify the receipt of materials at the end of each day, which were both contrary to the required procedures.

On May 6, Bolliger and Chaffin received termination notices, specifying the reason as “poor performance” during the April administration of the TAKS. After a hearing, which confi rmed the terminations, they fi led suit in federal court claiming that district offi cials had committed reverse racial discrimination in violation of Title VII, the Equal Employment Opportunities Act. They alleged that seven African American test administrators had performed poorly on the TAKS testing and had not been terminated. The district defendants fi led a pretrial motion for summary judgment.

How do you think the federal trial court ruled in this case?
In Bolliger v. Dallas County (2012), the federal district court granted the defendant’s motion for summary judgment, thus resolving the case in the district’s favor. Applying the multi-step decisional framework that the Supreme Court has developed for Title VII claims, the court noted that the defendant did not take issue with the first step—that Bolliger and Chaffin had been subject to adverse employment action that similarly situated co-workers of a different race had not received. Thus, the issues were the next steps—whether the district showed a legitimate nondiscriminatory reason for the adverse action and, if so, whether the plaintiff-employees showed that the real reason was racial discrimination. For these two steps, the court concluded that the district had shown that poor performance was the legitimate basis of the termination, and—in the absence of details regarding the seven other administrators—the educators had not provided any proof of pretext, or discriminatory motive.

Have there been other court cases concerning marked discipline of principals for improper administration of high-stakes tests?
Yes, and the courts have similarly followed the tradition of deference to school district defendants. For example, in Kentucky Education Professional Standards Board v. Gambrel and Thompson (2002), a state appellate court upheld the suspension of the certification of a principal and another administrator for 18 months and 12 months, respectively, for improprieties in the administration of a state-mandated school accountability test. The proven improprieties were that the principal, contrary to the mandated procedures, encouraged teachers, while administering the test, to assist students in understanding the test items, knew of staff member practices rewarding students for special efforts in the testing, and gave students unmonitored breaks and movement.

Have there been any court decisions where the basis for adverse employment action against school principals has included the unsatisfactory scores of students?
No, but analogous court decisions suggest not only the foreseeable appearance but also the likely outcomes of such cases. For example, in Butler v. Charlotte-Mecklenburg Board of Education (2012), a North Carolina appellate court upheld the dismissal of an elementary principal based in part on declining student scores on standardized achievement tests. Although taking into account that the district had assigned the principal to a “struggling school” and that the decline in scores was due in part to test re-norming, the court provided deferential latitude to the school board’s decision. Similarly, in Young- Gibson v. Board of Education (2011), an Illinois appellate court upheld the removal of a principal who failed to make adequate progress in correcting deficiencies, including students’ insufficient performance on NCLB mandated tests, which led to the probationary status of her school.

Have teachers been the subject of corresponding litigation, and, if so, what have been the judicial outcomes?
Teachers have been the subject of even more frequent court decisions, with the same trend of deference to school district defendants. Several generally corresponding cases concern alleged improprieties in the administration of high-stakes tests. For example, in Professional Standards Commission v. Smith (2002), an appellate court in Georgia upheld the six-month suspension of the teaching certificate of a fifth-grade teacher where the evidence supported the determination that she had improperly coached her students on a standardized test by giving the students practice with an older, unchanged copy of the same test. In Cropsey v. School Board of Manatee County (2009), a federal district court in Florida upheld the dismissal of a third-grade teacher for refusing to answer questions in the investigation of her suspected improprieties in administering the state mandated NCLB test in reading. The teacher’s suit was premised on federal civil rights defenses, including First Amendment protection again retaliation and Fifth Amendment privilege against self-incrimination. For the First Amendment claim, the court concluded that the teacher’s complaints to the principal about teaching conditions at the school, which she alleged to be the reason for her dismissal, was not protected expression. For the Fifth Amendment claim, the court relied on various precedents that showed the inapplicability of this constitutional privilege to non-criminal disciplinary actions against public employees.

Showing that the odds are not entirely in favor of district defendants, a Tennessee appellate court reversed the termination of a second-grade teacher who had been charged with unauthorized assistance to students in her class in the administration of the state-mandated NCLB test (Runions v. Emerson, 2005). The court concluded that the specific instances of purported unauthorized assistance were either not prohibited by the test security policy or based on the testimony of a discredited witness. Thus, the court found the termination decision to be an abuse of the district’s discretion.

For cases concerning the dismissal or other adverse employment actions against teachers based in part on students’ performance on NCLB-type tests, the court decisions have been too few and diverse to establish a solid pattern. The judicial odds would appear to favor districts as long as they adhere to policies that do not over-rely on such testing and that provide proper procedural protections.

Conclusion
High-stakes testing for accountability of not only schools and school districts, but also individual teachers appears to be part of the legal landscape during the current age of accountability. The litigation to date corresponds to the successive stages of NCLB implementation and value added teacher evaluation.

Cases to date reveal the intended consequence of high stakes in terms of the importance of integrity in the test administration, including recordkeeping, and the unintended consequence of notable misconduct among principals and teachers who are accountable for not only the testing, but also the results. Reports in Education Week in March and April 2012 of investigations of alleged cheating scandals in Atlanta, Baltimore, the District of Columbia, Houston, and Nashville are further evidence of this unintended consequence, particularly as the stakes become higher during the most recent years of the NCLB adequate yearly progress accountability. These cases illustrate the benefits of the following proactive steps within the deferential latitude that courts tend to provide to district authorities:

• Careful and comprehensive procedures for distribution, administration, scoring, and recordkeeping of the tests, with documentation that the relevant personnel are aware of these rules;
• Checks and balances among personnel to make sure that personnel adhere to these procedures;
• Careful, well-documented investigation of suspected instances of improprieties in such testing integrity and security; and
• Notice and hearing protections for employee discipline as established by the Constitution, state law, and local policies or contracts.

Recent cases address a new stage of high-stakes testing—state laws and local policies that provide for student test performance as one of the criteria for summative evaluation of educators. These cases suggest that in addition to the aforementioned proactive steps, test performance criterion must play a carefully circumscribed, rather than exclusive or predominant, role in value-added evaluations that have disciplinary consequences.

Perry A. Zirkel is university professor of education and law at Lehigh University in Bethlehem, Pennsylvania.

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